Former foster parents loses appeal on sex abuse conviction

Sex abuse appeal dismissed

Warning: This story contains descriptions of sexual abuse of children.

A former Vancouver Island ­foster parent has lost an appeal of his convictions for sexually assaulting two young children placed in his care.

On Monday, the B.C. Court of appeal unanimously dismissed the appeal by Kurk Joshua MacKay, who was sentenced to 12 years in prison in March 2017 after being convicted by a jury of two counts of sexual assault and two counts of sexual touching.

MacKay and his wife, Nicola, were foster parents from 2004 to 2014. Between 2004 and 2011, they lived with their three children and several foster children on Vancouver Island.

The offences were committed against a boy who lived with MacKay and his wife from the age of four to 11. The offences took place from 2005 to 2009, starting when the boy was five.

The second victim was a seven-year-old girl placed in the foster home in 2008. The offences came to light after the children, who are not ­siblings, were no longer with the ­MacKays and had been placed in other foster homes.

The two children eventually, separately, disclosed what had happened to West Shore RCMP.

B.C. Supreme Court Justice Brian MacKenzie sentenced MacKay, who worked as an electrician at the Department of National Defence, to two consecutive six-year prison terms for each victim.

“I cannot conceive of a more morally blameworthy act than a parent sexually offending against his or her child, particularly as here, commencing at a young age and being repeated over a number of years,” he said at the time.

During the three-week trial, the boy testified that MacKay crawled into his bed at night and forced him to have sex. MacKay put his hand over the boy’s mouth to stop him from crying out, he said. After MacKay left the bedroom, the boy cried himself to sleep. It happened more than 10 times, he said.

The boy also told the jury he was forced to perform sex acts on MacKay. He testified that when he told his foster mother about the abuse, MacKay threatened him.

The girl was placed in the MacKay foster home in 2008. She described how MacKay engaged in sex acts while she sat on his lap. MacKay would show her pornographic images as a prelude to sexually assaulting her, she testified. After, he would tell her how special she was. MacKay hurt her when he sexually assaulted her, she said.

In his appeal, MacKay argued that the judge erred in his ­rulings before the trial on access to third party records and on the proposed cross-examination of one of the foster children. ­MacKay also argued that the judge erred by not holding separate trials for each complainant, saying there was prejudice in the joint trial where both testified.

The instructions to the jury on prior consistent statements, collusion and motive to fabricate were also inadequate, MacKay charged.

The appeal court found the judge did not err in his pre-trial rulings and his instructions “while spare in some respects” were adequate, it said.

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